Access to Court
Article 6.1 implies a right of access to a court or equivalent tribunal. This implies the right to commence and take proceedings; Golder v UK.
The right of access to a court for the purposes of Article 6 was defined in Golder v. the United Kingdom, 1975, §§ 28-36 (see, as a recent authority, Grzęda v. Poland [GC], 2022, §§ 342-343). Referring to the principles of the rule of law and the avoidance of arbitrary power which underlie the Convention, the Court held that the right of access to a court was an inherent aspect of the safeguards enshrined in Article 6 (Grzęda v. Poland [GC], 2022 , § 298; Zubac v. Croatia [GC], 2018, §§ 76 et seq.).
Where there is no access to an independent and impartial court, the question of compliance with the rule of law will always arise (ibid., § 343). Thus, in order for national legislation excluding access to a court to have any effect under Article 6 § 1 in a particular case, it should be compatible with the rule of law (ibid., § 299, in the context of the examination of the second condition of the Vilho Eskelinen test).
The right to a fair trial, as guaranteed by Article 6 § 1, requires that litigants should have an effective judicial remedy enabling them to assert their civil rights (Naït-Liman v. Switzerland [GC], 2018, § 112; Běleš and Others v. the Czech Republic, 2002, § 49).
Everyone has the right to have any claim relating to his “civil rights and obligations” brought before a court or tribunal. In this way Article 6 § 1 embodies the “right to a court”, of which the right of access, that is, the right to institute proceedings before courts in civil matters, constitutes one aspect (Naït-Liman v. Switzerland [GC], 2018, § 113; Golder v. the United Kingdom, 1975, § 36; and case-law references cited). Article 6 § 1 may therefore be relied on by anyone who considers that an interference with the exercise of one of his or her civil rights is unlawful and complains that he or she has not had the possibility of submitting that claim to a tribunal meeting the requirements of Article 6 § 1.
Where there is a serious and genuine dispute as to the lawfulness of such an interference, going either to the very existence or to the scope of the asserted civil right, Article 6 § 1 entitles the individual concerned “to have this question of domestic law determined by a tribunal” (Z and Others v. the United Kingdom [GC], 2001, § 92; Markovic and Others v. Italy [GC], 2006, § 98). The refusal of a court to examine allegations by individuals concerning the compatibility of a particular procedure with the fundamental procedural safeguards of a fair trial restricts their access to a court (Al-Dulimi and Montana Management Inc. v. Switzerland [GC], 2016, § 131).
The “right to a court” and the right of access are not absolute. They may be subject to limitations, but these must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired (Stanev v. Bulgaria [GC], 2012, § 229; Baka v. Hungary [GC], 2016, § 120; Naït-Liman v. Switzerland [GC], 2018, § 113; Philis v. Greece (no. 1), 1991, § 59; De Geouffre de la Pradelle v. France, 1992, § 28).6 Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (Lupeni Greek Catholic Parish and Others v. Romania [GC], 2016, § 89; Naït-Liman v. Switzerland [GC], 2018, § 115).
Article 6 does not guarantee a right of access to a court with power to invalidate or override a law enacted by the legislature. Nevertheless, where a decree (issued on the basis of a law), decision or other measure, albeit not formally addressed to any individual natural or legal person, in substance does affect the “civil rights” or “obligations” of such a person or of a group of persons in a similar situation, whether by reason of certain attributes peculiar to them or by reason of a factual situation which differentiates them from all other persons, Article 6 § 1 may require that the substance of the decision or measure in question is capable of being challenged by that person or group before a “tribunal” meeting the requirements of that provision (Posti and Rahko v. Finland, 2002, §§ 53-54). This applies a fortiori to a measure applying the relevant legislation to a particular case (Project-Trade d.o.o. v. Croatia, 2020, §§ 67-68).
Although the right to bring a civil claim before a court ranks as one of the “universally recognised fundamental principles of law”, the Court does not consider these guarantees to be among the norms of jus cogens in the current state of international law (Al-Dulimi and Montana Management Inc. v. Switzerland [GC], 2016, § 136).In Baka v. Hungary [GC], 2016, the Court noted the growing importance which international and Council of Europe instruments, the case-law of international courts and the practice of other international bodies were attaching to procedural fairness in cases involving the removal or dismissal of judges, including the intervention of an authority independent of the executive and legislative powers in respect of every decision affecting the termination of office of a judge (§ 121 – and see Grzęda v. Poland [GC], 2022, §§ 327 and 345). In Kövesi v. Romania, 2020, the same considerations were applied to prosecutors (§ 156). See also, with regard to disciplinary matters, Ramos Nunes de Carvalho e Sá v. Portugal [GC], 2018, §§ 176-186, and Eminağaoğlu v. Turkey, 2021, §§ 99-104; and for a compulsory transfer, Bilgen v. Turkey, 2021, § 63.
In its decision in Lovrić v. Croatia, 2017, concerning the expulsion of a member of an association, the Court noted that a restriction on the right of access to a court to challenge such a measure pursued the “legitimate aim” of maintaining the organisational autonomy of associations (referring to Article 11 of the Convention). The scope of judicial review of such a measure may be restricted, even to a significant extent, but the person concerned must nevertheless not be deprived of the right of access to a court (§§ 71-73).
The court proceedings must be effective. In Assanidze v Georgia a person acquitted of offences continued to be imprisoned. The guarantees afforded by Article 6 of the Convention would be illusory if a state’s national legal or administrative system allowed a final and binding decision to acquit to remain inoperative to the detriment of the person concerned.
One of the fundamental aspects of the rule of law is the principle of legal certainty which requires amongst other things that where the courts make a final determination on an issue (and an appeal has concluded or time for taking it has passed), their ruling should not be called into question. Legal certainty presupposes respect for the principle of res judicata the principle of the finality of judgements.
A higher court review should be exercised to correct errors and miscarriages of justice but not to carry out a fresh examination. The review should not be treated as an appeal in disguise and the mere possibility of there being two views on the subject is not a ground for re-examination. A departure from the principle is justified only when made necessary by circumstances of a substantial and compelling character.
In Hornsby v Greece, the failure of a state to admit execution against itself in civil matters has been held to be a violation of Article 6.1.
In Ryabykhv v Russia the court confirmed that a final decision after the exhaustion of appeal should not be subject to further proceedings.
The right of access to a court must be “practical and effective” (Zubac v. Croatia [GC], 2018, §§ 76-79; Bellet v. France, 1995, § 38), in view of the prominent place held in a democratic society by the right to a fair trial (Prince Hans-Adam II of Liechtenstein v. Germany [GC], 2001, § 45). For the right of access to be effective, an individual must “have a clear, practical opportunity to challenge an act that is an interference with his rights” (Bellet v. France, 1995, § 36; Nunes Dias v. Portugal (dec.), 2003, regarding the rules governing notice to appear; Fazliyski v. Bulgaria, 2013, concerning the lack of judicial review of an expert assessment that was decisive for settling an employment dispute touching on national security; and, regarding the automatic suspension of a judge on account of exercising her right of appeal against a disciplinary decision to remove her from office, Camelia Bogdan v. Romania, 2020, §§ 75-77), or a clear, practical opportunity to claim compensation (Georgel and Georgeta Stoicescu v. Romania, 2011, § 74). This right is to be distinguished from the right guaranteed by Article 13 of the Convention7 (X and Others v. Russia, 2020, § 50).
The rules governing the formal steps to be taken and the time-limits to be complied with in lodging an appeal or an application for judicial review are aimed at ensuring the proper administration of justice and compliance, in particular, with the principle of legal certainty (Cañete de Goñi v. Spain, 2020, § 36). That being so, the rules in question, or their application, should not prevent litigants from using an available remedy (Miragall Escolano and Others v. Spain, 2000, § 36; Zvolský and Zvolská v. the Czech Republic, 2002, § 51). In particular, each case should be assessed in the light of the special features of the proceedings in question (Kurşun v. Turkey, 2018, §§ 103-104). In applying procedural rules, the courts must avoid both excessive formalism that would impair the fairness of the proceedings and excessive flexibility such as would render nugatory the procedural requirements laid down in statutes (Hasan Tunç and Others v. Turkey, 2017, §§ 32-33).
In short, the observance of formalised rules of civil procedure, through which parties secure the determination of a dispute, is valuable and important as it is capable of limiting discretion, securing equality of arms, preventing arbitrariness, securing the effective determination of a dispute and adjudication within a reasonable time, and ensuring legal certainty and respect for the court (Zubac v. Croatia [GC], 2018, § 96). However, the right of access to a court is impaired when the rules cease to serve the aims of “legal certainty” and the “proper administration of justice” and form a sort of barrier preventing the litigant from having his or her case determined on the merits by the competent court (Zubac v. Croatia [GC], 2018, § 98). Where inaccurate or incomplete information about time- limits has been supplied by the authorities, the domestic courts should take sufficient account of the particular circumstances of the case and not apply the relevant rules and case-law too rigidly (compare Gajtani v. Switzerland, 2014, and Clavien v. Switzerland (dec.), 2017).
The right to bring an action or to lodge an appeal must arise from the moment the parties may effectively become aware of a legal decision imposing an obligation on them or potentially harming their legitimate rights or interests. Otherwise, the courts could substantially reduce the time for lodging an appeal or even render any appeal impossible by delaying service of their decisions. As a means of communication between the judicial body and the parties, service makes the court’s decision and the grounds for it known to the parties, thus enabling them to appeal if they see fit (Miragall Escolano and Others v. Spain, 2000, § 37) or enabling an interested third party to intervene (Cañete de Goñi v. Spain, 2002, § 40, concerning an applicant who had not been summoned to give evidence as an interested party in proceedings whose outcome had caused her damage).
More broadly, it is the domestic authorities’ responsibility to act with the requisite diligence in ensuring that litigants are apprised of proceedings concerning them so that they can appear and defend themselves; notification of proceedings cannot be left entirely at the discretion of the opposing party (for a summary of the case-law, see Schmidt v Latvia, 2017, §§ 86-90, 92 and 94-95, where the applicant had not been informed of divorce proceedings and the Court emphasised that given what was at stake in the proceedings, special diligence had been required on the authorities’ part to ensure that the right of access to a court was respected).
Where administrative decisions may potentially affect third parties, there must be a coherent notification system ensuring that the relevant data are accessible, within the relevant time-limit, to any potentially interested party (Stichting Landgoed Steenbergen and Others v. the Netherlands, 2021,
§ 47, concerning a system of exclusively online notification/communication, §§ 50-53). A system of general publication of administrative decisions that strikes a fair balance between the interests of the authorities and of the persons concerned, in particular by affording the latter a clear, practical and effective opportunity to challenge the decisions, does not constitute a disproportionate interference with the right of access to a court (Geffre v. France (dec.), 2003).
The case of Zavodnik v. Slovenia, 2015, concerned notification in the course of bankruptcy proceedings. The Court held that the manner in which notice of the hearing had been given (it had been announced on the court’s notice board and in the Official Gazette) was inappropriate and had prevented the applicant from challenging the distribution of the estate (Zavodnik v. Slovenia, 2015,
The access-to-court guarantees apply with equal strength to private disputes as to proceedings involving public authorities, although these factors may have a bearing on the assessment of the proportionality of the impugned measure (Čolić v. Croatia, 2021, § 53).
In the specific circumstances of a case, the practical and effective nature of the right of access to a court may be impaired, for instance:
- by the prohibitive cost of the proceedings in view of the individual’s financial capacity:
- the excessive amount of security for costs in the context of an application to join criminal proceedings as a civil party (Aït-Mouhoub v. France, 1998, §§ 57-58; García Manibardo v. Spain, 2000, §§ 38-45);
- excessive court fees (Kreuz v. Poland, 2001, §§ 60-67; Podbielski and PPU Polpure v. Poland, 2005, §§ 65-66; Weissman and Others v. Romania, 2006, § 42; Georgel and Georgeta Stoicescu v. Romania, 2011, §§ 69-70, and conversely, Reuther v. Germany (dec.), 2003).
In these cases the Court considered the question of court fees that had been imposed prior to the institution of civil proceedings and had had the effect of hindering access to a court at first instance or at a subsequent stage of the proceedings for applicants who were unable to pay (contrast Tolstoy Miloslavsky v. the United Kingdom, 1995, §§ 62-67, regarding the payment of a security as a precondition for lodging an appeal). The Court has pointed out that where there is a possibility of an exemption from stamp duty for a court application following an assessment of the applicant’s financial situation, the authorities must give a decision promptly (Laçi v. Albania, 2021, §§ 53-60), and diligence is also expected of the applicant (Elcomp sp. z o.o. v. Poland, 2021, § 41).
If the State has a system for calculating court fees linked to the amount in dispute, in order to comply with Article 6 the system must be sufficiently flexible to allow for the possibility of total or partial exemption from payment or a reduction in the amount payable (see Nalbant and Others v. Turkey, 2022, §§ 39 and 40, and see §§ 41-45, where the applicant company had been forced to abandon its appeal because it was unable to pay the fees imposed on it).
In Stankov v. Bulgaria, 2007, § 53, the Court held that substantial court fees imposed at the end of proceedings could also amount to a restriction on the right to a court (see, more specifically, for cases concerning the excessive length of proceedings, an acquittal or unjustified pre-trial detention, §§ 59 and 62, and a claim for compensation for assault, Čolić v. Croatia, 2021, §§ 58-59); see also, regarding the refusal to reimburse legal costs, Černius and Rinkevičius v. Lithuania, 2020, §§ 68-69 and § 74; and compare with proceedings challenging the costs payable following judicial proceedings, Taratukhin v. Russia (dec.), 2020, §§ 36 et seq. For a recent summary of the case-law, see Benghezal v. France, 2022, §§ 43-45.
In cases concerning court fees, regard should also be had to the litigant’s conduct (Zubac v. Croatia [GC], 2018, § 120) or the manifest lack of any prospect of success of an action (Marić v. Croatia (dec.), 2020, §§ 58 and 60, concerning the obligation to bear the full costs of the State’s representation, and § 52, concerning the obligation for the losing party to pay litigation costs (the “loser pays” rule)); see also Stankiewicz v. Poland, 2006, §§ 62 et seq.; Klauz v. Croatia, 2013, §§ 77 et seq.; and Cindrić and Bešlić v. Croatia, 2016, §§ 119-123). With regard to litigation costs for proceedings that did not give rise to a decision on the merits, see Karahasanoğlu v. Turkey, 2021, §§ 136-137. Lastly, the Court has objected to the rule whereby each party has to bear its own costs regardless of the outcome of the proceedings (Zustović v. Croatia, 2021, §§ 102-106, and see also §§ 99-100 for the State’s duty to bear the cost of its errors in that context); it also examined the rule that each party was to bear its own costs without exception in Dragan Kovačević v. Croatia, 2022, §§ 67-85, and stressed the importance of giving reasons for a decision refusing to reimburse the costs incurred by the successful party (§ 83).
The imposition of fines in order to prevent a build-up of cases before the courts and to ensure the proper administration of justice is not, as such, incompatible with the right of access to a court. However, the amount of such fines is an important factor to take into account (Sace Elektrik Ticaret ve Sanayi A.Ş. v. Turkey, 2013, §§ 26 et seq., concerning a mandatory fine of 10% of the bid in the event of an unsuccessful attempt to challenge a public auction).
The Court held in Ivanova and Ivashova v. Russia, 2017, that the national courts should not interpret domestic law in an inflexible manner with the effect of imposing an obligation with which litigants could not possibly comply. Requiring an appeal to be lodged within one month of the date on which the registry drew up a full copy of the court’s decision – rather than the point at which the appellant actually had knowledge of the decision – amounted to making the expiry of the relevant deadline dependent on a factor entirely outside the appellant’s control. The Court found that the right of appeal should have become effective from the point at which the applicant could effectively apprise herself of the full text of the decision.
Limitation periods for bringing a claim (see, regarding harm to physical integrity, the case-law references cited in paragraphs 53-55 of Sanofi Pasteur v. France, 2020, including Howald Moor and Others v. Switzerland, 2014, §§ 79-80; Yagtzilar and Others v. Greece, 2001, § 27). For example, the Court has found a violation of the right of access to a court in a number of cases in which the discontinuation of criminal proceedings and the resulting failure to examine a civil claim were due to a lack of diligence on the national authorities’ part (Atanasova v. Bulgaria, 2008, §§ 35-47). Excessive delays in the examination of a claim may also render the right of access to a court meaningless (Kristiansen and Tyvik AS v. Norway, 2013).
The granting of leave to appeal out of time and the resulting acceptance of an ordinary appeal lodged after a significant period of time, for reasons that do not appear especially convincing, may entail a breach of the principle of legal certainty and the right to a court (Magomedov and Others v. Russia, 2017, §§ 87-89, where late appeals benefiting the competent authorities were accepted following the extension without any valid reason of the time-limit for appealing).
The length of preliminary investigations, attributable to the authorities, preventing the applicant from joining criminal proceedings as a civil party claiming damages or from making a civil compensation claim (Petrella v. Italy, 2021, §§ 51-53 and references cited).
Delay by the national authorities in examining an application by the applicant (challenging the selection procedure for a post for which she had applied), with the result that the proceedings were terminated on the grounds that there was no legal interest in pursuing the application as the administrative decision at issue had expired (Frezadou v. Greece, 2018, § 47 – compare and contrast with Sailing Club of Chalkidiki “I Kelyfos” v. Greece, 2019, § 72). More generally, in exceptional cases where proceedings are kept pending for an excessive period, this may impair the right of access to a court (Kristiansen and Tyvik AS v. Norway, 2013, § 57).
The unjustified lack of a decision for a particularly lengthy period by the court dealing with the case may be regarded as a denial of justice; the remedy used by the applicant may thus become deprived of all effectiveness where the court concerned does not manage to settle the dispute in good time, as required by the circumstances of the case and what is at stake (Sailing Club of Chalkidiki “I Kelyfos” v. Greece, 2019, § 60).
Other Limits on Access
- by issues relating to jurisdiction (see, for example, Arlewin v. Sweden, 2016, concerning a television programme broadcast from another European Union country) or an excessively restrictive interpretation of the scope of an association’s stated aim, depriving it of its right of access to a court (Association Burestop 55 and Others v. France, 2021, § 71). Furthermore, where an action for damages is brought against it, the State has a positive obligation to facilitate the identification of the respondent authority (Georgel and Georgeta Stoicescu v. Romania, 2011, §§ 69-71).
- by issues of evidence, where the requirements for the burden of proof are overly rigid (Tence v. Slovenia, 2016, §§ 35-38); concerning formalism in the presentation of evidence, see Efstratiou and Others v. Greece, 2020, §§ 44 et seq.
- by the existence of procedural bars preventing or limiting the possibilities of applying to a court:a particularly strict interpretation by the domestic courts of a procedural rule (excessive formalism) may deprive applicants of their right of access to a court (Zubac v. Croatia [GC], 2018, § 97; Pérez de Rada Cavanilles v. Spain, 1998, § 49; Miragall Escolano and Others v. Spain, 2000, § 38; Sotiris and Nikos Koutras ATTEE v. Greece, 2000, § 20; Běleš and Others v. the Czech Republic, 2002, § 50; RTBF v. Belgium, 2011, §§ 71-72 and 74; Miessen v. Belgium, 2016, §§ 72-74; Gil Sanjuan v. Spain, 2020, § 34; and for a constitutional court, Dos Santos Calado and Others v. Portugal, 2020, §§ 118-130), bearing in mind that an unreasonable construction of a procedural requirement impairs the right to effective judicial protection (Miragall Escolano and Others v. Spain, 2000,
§ 37). As regards the retroactive application of a new admissibility criterion after an appeal has been lodged, this raises an issue concerning the principle of legal certainty (Gil Sanjuan v. Spain, 2020, §§ 35-45);
- consideration of the value of the subject matter of the dispute (ratione valoris admissibility threshold) in order to determine the jurisdiction of a higher court (Zubac v. Croatia [GC], § 73, §§ 85-86);
- the requirements linked to execution of an earlier ruling may impair the right of access to a court, for instance where the applicant’s lack of funds makes it impossible for him even to begin to comply with the earlier judgment (Annoni di Gussola and Others v. France, 2000, § 56; compare with Arvanitakis v. France (dec.), 2000);
- procedural rules barring certain subjects of law from taking court proceedings (The Holy Monasteries v. Greece, 1994, § 83; Philis v. Greece (no. 1), 1991, § 65; Lupaş and Others v. Romania, 2006, §§ 64-67; and, regarding adults lacking capacity, Stanev v. Bulgaria [GC], 2012, §§ 241-45; Nataliya Mikhaylenko v. Ukraine, 2013, § 40; Nikolyan v. Armenia, 2019; and compare with R.P. and Others v. the United Kingdom, 2012);
- by the limits of the judicial review available, for example where a complaint to the administrative courts against a presidential decree could only give rise to a review of compliance with external formalities in the adoption of the decree, whereas the applicant’s complaint called for an examination of the merits and of the internal legality of the decree (Kövesi v. Romania, 2020, §§ 153-154, concerning the premature removal of a prosecutor), and a fortiori by the unavailability of a judicial review (see Camelia Bogdan v. Romania, 2020, §§ 76-77, concerning the automatic temporary suspension of a judge pending the examination of her appeal against a decision to remove her from office).
In Xavier Lucas v. France, 2022, by giving precedence to the rule that applications to the Court of Appeal had to be made electronically (e-justice), while disregarding the practical hurdles faced by the applicant in doing so, the Court of Cassation had adopted a formalistic approach which was not necessary to ensure legal certainty or the proper administration of justice and which was therefore “excessive” (§ 57).
However, again on the subject of formalism, the conditions of admissibility of an appeal on points of law may quite legitimately be stricter than for an ordinary appeal (Tourisme d’affaires v. France, 2012, § 27 in fine). Given the special nature of the Court of Cassation’s role, the procedure followed in the Court of Cassation may be more formal, especially where the proceedings before it follow the hearing of the case by a first-instance court and then a court of appeal, each with full jurisdiction (Levages Prestations Services v. France, 1996, §§ 44-48; Brualla Gómez de la Torre v. Spain, 1997, §§ 34-39), but the domestic authorities do not enjoy unfettered discretion in this respect (Zubac v. Croatia [GC], 2018, §§ 108-109). In that context, the Court has referred to the subsidiarity principle and to its case-law concerning filtering systems for remedies before supreme courts (Succi and Others v. Italy, 2021, § 85).
The Court has also had regard to the specific role of the Supreme Administrative Court and has found it acceptable that there may be stricter admissibility criteria for proceedings before it (Papaioannou v. Greece, 2016, §§ 42-49). In examining a complaint by an applicant about the new conditions for an appeal to that court, the Court held that it was not its task to express a view on the appropriateness of the domestic courts’ case-law policy choices, or of a choice of legislative policy, but solely to review whether the consequences of those choices were in conformity with the Convention (ibid., § 43; see also Ronald Vermeulen v. Belgium, 2018, § 53). Furthermore, in view of the special role played by the Constitutional Court as the court of last resort for the protection of fundamental rights, it can also be accepted that proceedings before it may be more formal (Arribas Antón v. Spain, 2015, § 50 and below).
More generally, the Zubac v. Croatia [GC], 2018, judgment reiterated the general principles on access to a higher court (§§ 80-82 and § 84) and the case-law on formalism (§§ 96-99). In particular, the issues of “legal certainty” and “proper administration of justice” are two central elements for drawing a distinction between excessive formalism and acceptable application of procedural formalities (§ 98). These principles also apply to proceedings before a constitutional court (Fraile Iturralde v. Spain (dec.), 2019, §§ 36-37; Dos Santos Calado and Others v. Portugal, 2020, §§ 111-112).
The Court has found that digital technologies (e-bar/e-justice) may help improve the administration of justice and be harnessed to promote the rights guaranteed by Article 6 § 1, thus pursuing a “legitimate aim” (Xavier Lucas v. France, 2022, § 46). The Court has also found that the requirement to submit applications electronically/digitally in proceedings involving compulsory representation by counsel was compatible with Article 6 § 1 (§ 51). However, the requirement to submit an application electronically may raise an issue in terms of access to a court when it is applied in practice, for example where electronic submission entailed the applicant’s lawyer having to complete a form using inappropriate legal concepts (§§ 52-57, violation).
The Court’s role is not to resolve disputes over the interpretation of domestic law regulating access to a court, but rather to ascertain whether the effects of such interpretation are compatible with the Convention (Zubac v. Croatia [GC], 2018, § 81). In that regard, the Court examines whether the procedure to be followed for the remedy in question could be regarded as “foreseeable” from the point of view of the litigant. A coherent domestic judicial practice and a consistent application of that practice will normally satisfy the foreseeability criterion with regard to a restriction on access to a higher court (ibid., § 88; C.N. v. Luxembourg, 2021, § 44, and concerning the foreseeability of the combined application of various statutory provisions for the first time by the Court of Cassation, see
§§ 45 et seq. and Xavier Lucas v. France, 2022, § 50). It is important that reasons should be given by the national court regarding the application of domestic law, as this makes it possible to verify that a “fair balance” has been struck between the legitimate concern to ensure compliance with the procedural requirements for lodging an appeal on points of law, on the one hand, and the right of access to a court on the other hand (Ghrenassia v. Luxembourg, §§ 34-37).
According to Zubac v. Croatia [GC], 2018, in determining the proportionality of legal restrictions on access to the superior courts, three factors should be taken into account: (i) the procedure to be followed for an appeal must be foreseeable from the point of view of the litigant (see also, with regard to a constitutional court, Arrozpide Sarasola and Others v. Spain, 2018, § 106); (ii) after identifying the procedural errors committed during the proceedings which eventually prevented the applicant from enjoying access to a court, it must be determined whether the applicant had to bear an excessive burden as a result of such errors. Where the procedural error in question occurred only on one side, that of the applicant or the relevant authorities, notably the court(s), as the case may be, the Court would normally be inclined to place the burden on the side that produced the error (Zubac v. Croatia [GC], 2018, § 90 and the examples cited); and (iii) whether the restrictions in question could be said to involve “excessive formalism” (§ 97; see also, concerning a constitutional court, Dos Santos Calado and Others v. Portugal, 2020, §§ 116-117, and the examples cited).
In Gil Sanjuan v. Spain, 2020, the Court found a violation of Article 6 § 1 on account of the retroactive application of a new admissibility criterion for an appeal to the Supreme Court after the appeal had been lodged (§ 45). Referring to the principle of legal certainty, the Court found that the emergence of the new criterion had not been foreseeable for the applicant (§§ 38-39) and that she had therefore been unable to remedy any potential effects of the application of the new criterion (§§ 40-43).
In Trevisanato v. Italy, 2016, the Court did not find fault with the requirement for specialist lawyers to conclude each ground of appeal to the Court of Cassation with a paragraph summing up the reasoning and explicitly identifying the legal principle alleged to have been breached (§§ 42-45). In Succi and Others v. Italy, 2021, the Court emphasised the level of knowledge expected of specialist lawyers when drafting appeals on points of law (§ 113), and in Ghrenassia v. Luxembourg, 2021, the Court had regard to the lack of a system of specialist lawyers for proceedings before the Court of Cassation (§ 36).
The Court has also found that considerations linked to expediting and simplifying the Court of Cassation’s examination of cases were legitimate (Miessen v. Belgium, 2016, § 71).
In principle, the imposition of a specified threshold (ratione valoris admissibility criterion) for access to a supreme court pursues the legitimate aim of ensuring that that court is only required to deal with matters of such importance as befits its role (Zubac v. Croatia [GC], 2018, § 73, § 83 and
§ 105). However, the proportionality of such a restriction must be assessed on a case-by-case basis (§§ 106-107) and the Court has laid down precise criteria for assessing whether the national authorities exceeded their margin of appreciation in the case in question (§§ 108-109).
Furthermore, Article 6 § 1 guarantees not only the right to institute proceedings but also the right to obtain a determination of the dispute by a court (Lupeni Greek Catholic Parish and Others v. Romania [GC], 2016, § 86; Kutić v. Croatia, 2002, §§ 25 and 32, regarding the staying of proceedings; Aćimović v. Croatia, 2003, § 41; Beneficio Cappella Paolini v. San Marino, 2004, § 29 concerning a denial of justice; Marini v. Albania, 2007, §§ 118-123, concerning a refusal to take a final decision on the applicant’s constitutional appeal as a result of a tied vote, and Gogić v. Croatia, 2020, §§ 40-41, concerning the consequences of errors by the judicial authorities).
In cases where the termination of criminal proceedings prevents the examination of civil‑party claims made by applicants in the context of those proceedings, the Court examines whether the applicants could make use of other channels for asserting their civil rights. In cases where it has held that other accessible and effective remedies were available, it has found no infringement of the right of access to a court (Nicolae Virgiliu Tănase v. Romania [GC], 2019, § 198). More generally, the failure to examine a civil-party application on the merits does not ipso facto amount to an unjustified restriction of the right of access to a court (Petrella v. Italy, 2021, §§ 49-53 and references cited).
The right to a court may also be infringed where a court fails to comply with the statutory time-limit in ruling on appeals against a series of decisions of limited duration (Musumeci v. Italy, 2005, §§ 41-43) or in the absence of a decision (Ganci v. Italy, 2003, § 31). The “right to a court” also
encompasses the execution of judgments.
In examining the proportionality of a restriction of access to a civil court, the Court takes into account the procedural errors committed during the proceedings which prevented the applicant from enjoying such access, and determines whether the applicant was made to bear an excessive burden on account of such errors. For example, in Xavier Lucas v. France, 2022, the Court found that in view of the circumstances of the case, the applicant’s lawyer could not be held accountable for the procedural error in question – the submission of an application on paper and not electronically (§§ 54- 56). Reference criteria have been laid down for assessing whether it is the applicant or the competent authorities who should bear the consequences of any errors (Zubac v. Croatia [GC], 2018, §§ 90-95,
§ 119). Where errors were made before the lower courts, the Court has assessed the subsequent role of the Supreme Court (§§ 122-124).
Furthermore, where a person claims the right of access to a court, that Convention right may be in conflict with the other party’s right to legal certainty, likewise secured under the Convention. Such a situation requires a balancing exercise between conflicting interests, and the Court accords the State a wide margin of appreciation (Sanofi Pasteur v. France, 2020, §§ 56-58).
The right of access to the courts is not absolute. The court to which an application has been made may decline jurisdiction on convincing and reasonable grounds (Ali Riza v. Switzerland, 2021, §§ 94- 96) and there is scope for limitations permitted by implication (Stanev v. Bulgaria [GC], 2012, § 230; Zubac v. Croatia [GC], 2018, § 78; Golder v. the United Kingdom, 1975, § 38). This applies in particular where the conditions of admissibility of an appeal are concerned, since by its very nature it calls for regulation by the State, which enjoys a certain margin of appreciation in this regard (Zubac v. Croatia [GC], 2018, §§ 107-109; Luordo v. Italy, 2003, § 85), or where the proper administration of justice and the effectiveness of domestic judicial decisions are concerned (Ali Riza v. Switzerland, 2021, § 97).
Nonetheless, the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a “legitimate aim” (Oorzhak v. Russia, 2021, §§ 20-22) and if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be achieved” (Markovic and Others v. Italy [GC], 2006, § 99; Naït-Liman v. Switzerland [GC], 2018, §§ 114-115; Ashingdane v. the United Kingdom, 1985, § 57; Fayed v. the United Kingdom, 1994, § 65).
The right of access to a court may also be subject, in certain circumstances, to legitimate restrictions, such as, for example, statutory limitation periods (Sanofi Pasteur v. France, 2020, §§ 50- 55, concerning the defendant and the victim claiming damages; Stubbings and Others v. the United Kingdom, 1996, §§ 51-52), security for costs orders (Tolstoy Miloslavsky v. the United Kingdom, 1995, §§ 62-67), a legal representation requirement (R.P. and Others v. the United Kingdom, 2012, §§ 63- 67), a requirement to attempt a friendly-settlement procedure before bringing a claim for damages against the State (Momčilović v. Croatia, 2015, §§ 55-57), or observance of the rules on serving pleadings on the parties to proceedings concerning an appeal on points of law (C.N. v. Luxembourg, 2021, § 55). The same applies to the requirement to be representated by a specialist lawyer before the Court of Cassation (Bąkowska v. Poland, 2010, §§ 45-46, 48). Moreover, a refusal by a legal-aid lawyer to lodge an appeal on points of law on account of its lack of prospects of success is not in itself contrary to Article 6 § 1 (§ 47).
In addition, a restriction of access to judicial review may be accepted in order to respect the organisational autonomy of an association or a professional body with a certain degree of autonomy in deciding internal matters, such as the rules of conduct of its members, outside a disciplinary context (Bilan v. Croatia (dec.), 2020, §§ 27-31, concerning a written warning issued to a notary public; to be distinguished from Lovrić v. Croatia, 2017, § 73). A restriction of access to a court may result from a decision by a supreme court to limit in time the effects of a declaration that a law is unconstitutional. This does not breach Article 6 § 1 in exceptional circumstances where it is justified by public-interest considerations. Indeed, it may be necessary to avoid any manifestly excessive consequences of such a declaration of unconstitutionality in a sensitive area such as, for example, a country’s economic policy in times of serious economic crisis (Frantzeskaki v. Greece (dec.), 2019, §§ 38-40 and references cited).
Where access to a court is restricted by law or in practice, the Court examines whether the restriction affects the substance of the right and, in particular, whether it pursues a “legitimate aim” (which must be indicated by the respondent Government: Oorzhak v. Russia, 2021, §§ 20-22) and whether there is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved: Ashingdane v. the United Kingdom, 1985, § 57. With regard to the proportionality of the restriction, the scope of the State’s margin of appreciation may depend, inter alia, on the relevant international law in this area (Naït-Liman v. Switzerland [GC], 2018, §§ 173-174). In cases involving issues that are subject to constant developments in the member States, the scope of the margin of appreciation may also depend on whether there is a “European consensus” or at least a certain trend among the member States (ibid., § 175). No violation of Article 6 § 1 can be found if the restriction is compatible with the principles established by the Court.
Whether a person has an actionable domestic claim may depend not only on the substantive content, properly speaking, of the relevant civil right as defined under national law but also on the existence of procedural bars preventing or limiting the possibilities of bringing potential claims to court (McElhinney v. Ireland [GC], 2001, § 24). Article 6 § 1 does not guarantee any particular content for civil “rights” in the substantive law of the Contracting States: the Court may not create through the interpretation of Article 6 § 1 a substantive right which has no legal basis in the State concerned (Z and Others v. the United Kingdom [GC], 2001, §§ 87 and 98). In Lupeni Greek Catholic Parish and Others v. Romania [GC], 2016, the Court held that the difficulties encountered by the applicants in their attempts to secure the return of a church building had resulted from the applicable substantive law and were unrelated to any limitation on the right of access to a court. It therefore held that there had been no violation of Article 6 § 1 (§§ 99 and 106).
In addition, the mere fact that a claim is held to be inadmissible for lack of a legitimate interest does not amount to a denial of access to a court as long as the claimant’s submissions have been properly examined (Obermeier v. Austria, 1990, § 68, and for an international court, Konkurrenten.no AS v. Norway (dec.), 2019, §§ 46-48).
Restrictions on the national courts’ jurisdiction to deal with acts carried out abroad: such restrictions may pursue legitimate aims linked to the principles of the proper administration of justice and maintaining the effectiveness of domestic judicial decisions (Naït-Liman v. Switzerland [GC], 2018, § 122; Hussein and Others v. Belgium, 2021, §§ 59-73).
Immunity International Organisations
International organisations’ immunity from national jurisdiction (see in particular Stichting Mothers of Srebrenica and Others v. the Netherlands (dec.), 2013, § 139): this treaty-based rule – which pursues a legitimate aim (Waite and Kennedy v. Germany [GC], 1999, § 63) – is permissible from the standpoint of Article 6 § 1 only if the restriction stemming from it is not disproportionate. Hence, it will be compatible with Article 6 § 1 if the persons concerned have available to them reasonable alternative means to protect effectively their rights under the Convention (ibid., §§ 68-74; Prince Hans-Adam II of Liechtenstein v. Germany [GC], 2001, § 48; Chapman v. Belgium (dec.), 2013, §§ 51-56; and Klausecker v. Germany (dec.), 2015, §§ 69-77, concerning the alternative to an arbitration procedure). It does not follow, however, that in the absence of an alternative remedy the recognition of immunity of an international organisation is ipso facto constitutive of a violation of the right of access to a court (Stichting Mothers of Srebrenica and Others v. the Netherlands (dec.), 2013,
The decision in Stichting Mothers of Srebrenica and Others v. the Netherlands (dec.), 2013, concerned the granting of immunity to the United Nations (UN) in the national courts. The Court held that operations established by UN Security Council resolutions under Chapter VII of the UN Charter were fundamental to the UN’s mission to secure international peace and security. Accordingly, the Convention could not be interpreted in a manner which would subject the acts and omissions of the Security Council to domestic jurisdiction in the absence of a UN decision to that effect. To bring such operations within the scope of domestic jurisdiction would amount to allowing any individual State, through its courts, to interfere with the fulfilment of a key mission of the UN in this field, including with the effective conduct of its operations (§ 154). The Court added that international law did not support the position that a civil claim should cause the domestic courts to lift the United Nations’ immunity from suit for the sole reason that the claim was based on an allegation of a particularly grave violation of a norm of international law, even a norm of jus cogens (§ 158).
The doctrine of foreign State immunity is generally accepted by the community of nations (Stichting Mothers of Srebrenica and Others v. the Netherlands, 2013, (dec.), § 158). Measures taken by a member State which reflect generally recognised rules of public international law on State immunity do not automatically constitute a disproportionate restriction on the right of access to court (Fogarty v. the United Kingdom [GC], 2001, § 36; McElhinney v. Ireland [GC],
Jurisdictional immunity of foreign States: the grant of immunity is to be seen not as qualifying a substantive right but as a procedural bar on the national courts’ power to determine the right (J.C. and Others v. Belgium, 2021, §§ 58-59). A foreign State may waive its right to immunity before the courts of another State by giving clear and unequivocal consent (Ndayegamiye-Mporamazina v. Switzerland, 2019, §§ 57 and 59). In cases where the application of the principle of State immunity from jurisdiction restricts the exercise of the right of access to a court, it must be ascertained whether the circumstances of the case justify such restriction (for example, Prince Hans-Adam II of Liechtenstein v. Germany [GC], 2001, §§ 51-70). The restriction must pursue a legitimate aim and be proportionate to that aim (Cudak v. Lithuania [GC], 2010, § 59; Sabeh El Leil v. France [GC], 2011, §§ 51-54). The grant of sovereign immunity to a State in civil proceedings pursues the “legitimate aim” of complying with international law to promote comity and good relations between States (Fogarty v. the United Kingdom [GC], 2001, § 34; Al-Adsani v. the United Kingdom [GC], 2001, § 54; Treska v. Albania and Italy (dec.), 2006; J.C. and Others v. Belgium, 2021, § 60). As to whether the measure taken is proportionate (see the summary of the principles in J.C. and Others v. Belgium, 2021, §§ 61 and 63), it may in some cases impair the very essence of the individual’s right of access to a court (Cudak v. Lithuania [GC], 2010, § 74; Sabeh El Leil v. France [GC], 2011, § 49; Naku v. Lithuania and Sweden, 2016, § 95), while in other cases it may not (Al-Adsani v. the United Kingdom [GC], 2001, § 67; Fogarty v. the United Kingdom [GC], 2001, § 39; McElhinney v. Ireland [GC], 2001, § 38; and more recently, J.C. and Others v. Belgium, 2021, § 75, where the Court found that the national court had not departed from the generally recognised rules of international law on State immunity). In the absence of an alternative remedy, there is not ipso facto a violation of the right of access to a court (Stichting Mothers of Srebrenica and Others v. the Netherlands (dec.), 2013), although the Court found that the existence of an alternative would be desirable in the specific circumstances of the case of J.C. and Others v. Belgium, 2021 (§ 71).
State immunity from jurisdiction has been circumscribed by developments in customary international law. Thus, the Court has noted a trend in international and comparative law towards limiting State immunity in respect of employment-related disputes, with the exception, however, of those concerning the recruitment of embassy staff (Cudak v. Lithuania [GC], 2010, §§ 63 et seq.; Sabeh El Leil v. France [GC], 2011, §§ 53-54 and 57-58; Naku v. Lithuania and Sweden, 2016, § 89, concerning the dismissal of embassy staff members; see also Wallishauser v. Austria, 2012, concerning the service of a summons in proceedings against a foreign State relating to salary arrears).
As regards disputes concerning a contract of employment concluded between embassies or permanent missions and their support staff, the Court has always protected both nationals of the forum State (the State where the work is performed) and non-nationals living there (Ndayegamiye- Mporamazina v. Switzerland, 2019, §§ 49 and 61 and references cited). This consistent approach is in line with codified international custom: in principle, a foreign State cannot rely on immunity from jurisdiction in the context of a dispute concerning a contract of employment executed in the territory of the forum State.
However, there are exceptions to that principle, in particular where “the employee is a national of the employer State at the time when the proceeding is instituted, unless this person has his or her permanent residence in the State of the forum” (ibid., §§ 61-63). In the case cited, unlike the previous cases, the applicant was a national of the employer State (Burundi) when she brought her case before the Swiss courts, and was not permanently resident in the forum State (Switzerland), where she worked at the Permanent Mission of the Republic of Burundi to the United Nations. The observance by Switzerland of the Republic of Burundi’s immunity from jurisdiction in respect of the applicant’s claim of unfair dismissal was compatible with the generally recognised rules of international law on State immunity (§ 66).
A restrictive approach to immunity may also be taken in relation to commercial transactions between the State and foreign private individuals (Oleynikov v. Russia, 2013, §§ 61 and 66). n the other hand, the Court noted in 2001 that, while there appeared to be a trend in international and comparative law towards limiting State immunity in respect of personal injury caused by an act or omission within the forum State, that practice was by no means universal (McElhinney v. Ireland [GC], 2001, § 38).
In J.C. and Others v. Belgium, 2021, the Court did not uphold the applicants’ argument that State immunity from jurisdiction could not be maintained in cases involving inhuman or degrading treatment (see §§ 64 et seq., including the summary of precedents concerning other serious violations of human rights law, international humanitarian law, or jus cogens norms). In addition, the Court held in 2014 that while there was some emerging support in favour of a special rule or exception in public international law in cases concerning civil claims for torture lodged against foreign State officials, the bulk of the authority was to the effect that the State’s right to immunity could not be circumvented by suing its servants or agents instead (Jones and Others v. the United Kingdom, 2014, §§ 213-15, concerning the refusal to consider the applicants’ civil claim in respect of torture allegations on account of the immunity invoked by the State in question and its officials).
State immunity from execution is not in itself contrary to Article 6 § 1. The Court noted in 2005 that all the international legal instruments governing State immunity set forth the general principle that, subject to certain strictly delimited exceptions, foreign States enjoyed immunity from execution in the territory of the forum State (Manoilescu and Dobrescu v. Romania and Russia (dec.), 2005, § 73). By way of illustration, the Court held in 2002 that “although the Greek courts ordered the German State to pay damages to the applicants, this did not necessarily oblige the Greek State to ensure that the applicants could recover their debt through enforcement proceedings in Greece” (Kalogeropoulou and Others v. Greece and Germany (dec.), 2002). These decisions are valid in relation to the state of international law at the relevant time and do not preclude future developments in that law.
It- is a long-standing practice for States generally to confer varying degrees of immunity on parliamentarians, with the aim of allowing free speech for representatives of the people and preventing partisan complaints from interfering with parliamentary functions (C.G.I.L. and Cofferati v. Italy (no. 2), 2010, § 44). Hence, parliamentary immunity may be compatible with Article 6, provided that it:
- pursues legitimate aims: protecting free speech in Parliament and maintaining the separation of powers between the legislature and the judiciary (A. v. the United Kingdom, 2002, §§ 75-77 and 79);
- is not disproportionate to the aims sought to be achieved (if the person concerned has reasonable alternative means to protect effectively his or her rights (ibid., § 86) and immunity attaches only to the exercise of parliamentary functions (ibid., § 84; Zollmann v. the United Kingdom (dec.), 2010).
A lack of any clear connection with parliamentary activity calls for a narrow interpretation of the concept of proportionality between the aim sought to be achieved and the means employed (Cordova v. Italy (no. 2), 2003, § 64; Syngelidis v. Greece, 2010, § 44). Individuals’ right of access to a court cannot be restricted in a manner incompatible with Article 6 § 1 whenever the impugned remarks were made by a member of Parliament (Cordova v. Italy (no. 1), 2003, § 63; C.G.I.L. and Cofferati v. Italy (no. 2), 2010, §§ 46-50, where, in addition, the victims did not have any reasonable alternative means to protect their rights).
Judges’ exemption from jurisdiction is likewise not incompatible with Article 6 § 1 if it pursues a legitimate aim, namely the proper administration of justice (Ernst and Others v. Belgium, 2003, § 50), and observes the principle of proportionality in the sense that the applicants have reasonable alternative means to protect effectively their rights under the Convention (ibid., 2003, § 53-55).
Immunities enjoyed by civil servants: limitations on the ability of individuals to take legal proceedings to challenge statements and findings made by civil servants which damage their reputation may pursue a legitimate aim in the public interest (Fayed v. the United Kingdom, 1994,
§ 70); however, there must be a relationship of proportionality between the means employed and that legitimate aim (ibid., §§ 75-82). The case of Jones and Others v. the United Kingdom (§§ 213-15) concerned the refusal to consider the applicants’ civil claim in respect of torture allegations on account of the immunity invoked by the State in question and its officials. The Court was satisfied that the grant of immunity to the State officials in this particular case reflected generally recognised rules of public international law, while indicating that developments in this area needed to be kept under review.
Immunity of a head of State: in view of the functions performed by heads of State, the Court has considered it acceptable to afford them functional immunity in order to protect their freedom of expression and to maintain the separation of powers within the State. The parameters of such immunity must be regulated. Perpetual and absolute immunity that can never be lifted would constitute a disproportionate restriction on the right of access to a court (Urechean and Pavlicenco v. Republic of Moldova, 2014, §§ 47-55).
Limits to immunity: it would not be consistent with the rule of law in a democratic society or with the basic principle underlying Article 6 § 1 – namely that civil claims must be capable of being submitted to a judge for adjudication – if a State could, without restraint or control by the Convention enforcement bodies, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on large groups or categories of persons (McElhinney v. Ireland [GC], 2001, §§ 23-26; Sabeh El Leil v. France [GC], 2011, § 50).
The judgment in Al-Dulimi and Montana Management Inc. v. Switzerland [GC], 2016, concerned the confiscation of assets pursuant to Resolution 1483 (2003) of the United Nations Security Council. The judgment lays down principles regarding the availability of appropriate judicial supervision by the domestic courts of measures adopted at national level pursuant to decisions taken within the UN sanctions system. The Court held in this particular case that there was nothing in Resolution 1483 (2003) that explicitly prevented the domestic courts from reviewing, in terms of human rights protection, the measures taken at national level pursuant to that Resolution. Where a resolution does not contain explicitly exclude the possibility of judicial supervision, it must always be understood as authorising States to exercise sufficient scrutiny to avoid any arbitrariness in its implementation, so that a fair balance can be struck between the competing interests at stake. Any implementation of the Security Council resolution without the possibility of judicial supervision to ensure the absence of arbitrariness would engage the State’s responsibility under Article 6 of the Convention.
An individual cannot be deemed to have waived a right if he or she had no knowledge of the existence of the right or of the related proceedings (Schmidt v. Latvia, 2017, § 96 and case-law references cited).
In the Contracting States’ domestic legal systems, a waiver of a person’s right to have his or case heard by a court or tribunal is frequently encountered in civil matters, notably in the shape of arbitration clauses in contracts. The waiver, which has undeniable advantages for the individual concerned as well as for the administration of justice, does not in principle offend against the Convention (Deweer v. Belgium, 1980, § 49; Pastore v. Italy (dec.), 1999). Article 6 does not therefore preclude the setting up of arbitration tribunals in order to settle certain disputes (Transado – Transportes Fluviais Do Sado, S.A. v. Portugal (dec.), 2003).
The parties to a case are free to decide that the ordinary courts are not required to deal with certain disputes potentially arising from the performance of a contract. In accepting an arbitration clause, the parties voluntarily waive certain rights enshrined in the Convention (Eiffage S.A. and Others v. Switzerland (dec.), 2009; Tabbane v. Switzerland (dec.), 2016, § 27). There may be a legitimate reason for limiting the right to direct individual access to an arbitration tribunal (Lithgow and Others v. the United Kingdom, 1986, § 197).
Persons may waive their right to a court in favour of arbitration, provided that such waiver is permissible and is established freely and unequivocally (Suda v. the Czech Republic, 2010, §§ 48-49 and case-law references cited; Tabbane v. Switzerland (dec.), 2016, §§ 26-27 and 30). In a democratic society too great an importance attaches to the right to a court for its benefit to be forfeited solely by reason of the fact that an individual is a party to a settlement reached in the course of a procedure ancillary to court proceedings (Suda v. the Czech Republic, 2010, § 48). The waiver must be attended by minimum safeguards commensurate to its importance (Eiffage S.A. and Others v. Switzerland (dec.), 2009; Tabbane v. Switzerland (dec.), 2016, § 31).
A distinction is made in the case-law between voluntary and compulsory arbitration. In principle, no issue is raised under Article 6 in the case of voluntary arbitration since it is entered into freely (see, however, in relation to commercial arbitration, Beg S.p.a. v. Italy, 2021, §§ 135 et seq.). However, in the case of compulsory arbitration – that is, where arbitration is required by law – the parties have no opportunity to remove their dispute from the jurisdiction of an arbitration tribunal, which consequently must afford the guarantees set forth in Article 6 § 1 of the Convention (Tabbane
v. Switzerland (dec.), 2016, §§ 26-27 and case-law references cited). In the decision cited, the Court held that the waiver clause and the relevant statutory provision had pursued a legitimate aim, namely promoting Switzerland’s position as a venue for arbitration through flexible and rapid procedures, while respecting the applicant’s contractual freedom (§ 36).
The Court has emphasised the advantages of arbitration over judicial proceedings in settling commercial disputes. In a case brought by a professional footballer and a speed skater, it reiterated the applicable principles in this area (Mutu and Pechstein v. Switzerland, 2018, §§ 94-96) and confirmed that this finding was equally relevant in the sphere of professional sport. In determining whether the applicants had waived all or part of the safeguards provided for in Article 6 § 1, the fundamental question was whether the arbitration procedure had been compulsory for them (§ 103). The Court observed that the second applicant had had no other choice than to apply to the Court of Arbitration for Sport (CAS), since the rules of the International Skating Union clearly stated that all disputes were to be brought before the CAS, failure to do so entailing a risk of exclusion from international competition (§§ 113-115). Conversely, the Court found that the first applicant had not been required to accept the compulsory jurisdiction of the CAS, since the relevant international rules gave footballers the choice in such matters. Nevertheless, the Court went on to observe that the first applicant could not be regarded as having unequivocally agreed to apply to a panel of the CAS lacking independence and impartiality. One of the important aspects in the Court’s view was that, in making use of the rules governing procedure before the CAS, the first applicant had in fact sought to have one of the arbitrators on the panel stood down. Accordingly, in the cases of both the first and the second applicants, the arbitration procedure should have afforded the safeguards provided for in Article 6 § 1 (§§ 121-123). See also, regarding an arbitration committee with exclusive and compulsory jurisdiction to hear football disputes, Ali Rıza and Others v. Turkey, 2020, §§ 175-181 and Ali Riza v. Switzerland, 2021, § 82).
The right of access to court must be effective. Where a matter is so complex as to require professional legal assistance in the state this must provide this if it is indispensable for effective access to court. In Airey v Ireland the absence of a civil legal aid system was found to breach the obligations in the Convention.
In Steel & Morris v UK McDonald’s sued environmental protesters for libel. Because freedom of expression was at issue with the risk of substantial damages and costs the failure to afford assistance for defence breached the Convention.
Article 6 § 1 does not imply that the State must provide free legal aid for every dispute relating to a “civil right” (Airey v. Ireland, 1979, § 26). There is a clear distinction between Article 6 § 3 (c) – which guarantees the right to free legal aid in criminal proceedings subject to certain conditions – and Article 6 § 1, which makes no reference to legal aid (Essaadi v. France, 2002, § 30).
However, the Convention is intended to safeguard rights which are practical and effective, in particular the right of access to a court. Hence, Article 6 § 1 may sometimes compel the State to provide for the assistance of a lawyer when such assistance proves indispensable for an effective access to court (Airey v. Ireland, 1979, § 26).
The question whether or not Article 6 requires the provision of legal representation to an individual litigant will depend upon the specific circumstances of the case (ibid.; McVicar v. the United Kingdom, 2002, § 48, concerning a defendant in proceedings instituted by the authorities, and see § 50; Steel and Morris v. the United Kingdom, 2005, § 61). What has to be ascertained is whether, in the light of all the circumstances, the lack of legal aid would deprive the litigant of a fair hearing (McVicar v. the United Kingdom, 2002, § 51), for example by putting him or her at a distinct disadvantage as compared with the opposing party (Timofeyev and Postupkin v. Russia, 2021, §§ 101- 107).
The question whether Article 6 implies a requirement to provide legal aid will depend, among other factors, on:
- the importance of what is at stake for the applicant (P., C. and S. v. the United Kingdom, 2002, § 100; Steel and Morris v. the United Kingdom, 2005, § 61), including whether a right protected by the Convention was at issue in the domestic proceedings (for example, Article 8 or 10, or Article 2 of Protocol No. 4 to the Convention: Timofeyev and Postupkin v. Russia, 2021, § 102).;
- the complexity of the relevant law or procedure (Airey v. Ireland, 1979, § 24), for example on account of special rules on the presentation of the parties’ observations (Gnahoré v. France, 2000, § 40) or on the submission of evidence (McVicar v. the United Kingdom, 2002, § 54);
- the applicant’s capacity to represent him or herself effectively (McVicar v. the United Kingdom, 2002, §§ 48-62; Steel and Morris v. the United Kingdom, 2005, § 61), which may concern the question whether the opposing party was provided with assistance throughout the proceedings and the difficulties encountered by the applicant in preparing his or her defence (Timofeyev and Postupkin v. Russia, 2021, §§ 104-107);
- the existence of a statutory requirement to have legal representation (Airey v. Ireland, 1979, § 26; Gnahoré v. France, 2000, § 41 in fine).
However, the right in question is not absolute (Steel and Morris v. the United Kingdom, 2005, §§ 59-60) and it may therefore be permissible to impose conditions on the grant of legal aid based in particular on the following considerations, in addition to those cited in the preceding paragraph:
- the financial situation of the litigant (Steel and Morris v. the United Kingdom, 2005, § 62);
- his or her prospects of success in the proceedings (ibid).
Hence, a legal aid system may exist which selects the cases which qualify for it and ensures that public money for legal aid in proceedings before the Court of Cassation is only made available to those whose appeals have a reasonable prospect of success (Del Sol v. France, 2002, § 23). However, the system established by the legislature must offer individuals substantial guarantees to protect them from arbitrariness (Gnahoré v. France, 2002, § 41; Essaadi v. France, 2002, § 36; Del Sol v. France, 2002, 26; Bakan v. Turkey, 2007, §§ 75-76 with a reference to the judgment in Aerts v. Belgium, 1998, concerning an impairment of the very essence of the right to a court).
It is therefore important to have due regard to the quality of a legal aid scheme within a State (Essaadi v. France, 2002, § 35) and to verify whether the method chosen by the authorities is compatible with the Convention (Santambrogio v. Italy, 2004, § 52; Bakan v. Turkey, 2007, §§ 74-78; Pedro Ramos v. Switzerland, 2010, §§ 41-45). There is no obligation on the State to seek through the use of public funds to ensure total equality of arms between the assisted person and the opposing party, as long as each side is afforded a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-à-vis the adversary (Steel and Morris v. the United Kingdom, 2005, § 62).
It is essential for the court to give reasons for refusing legal aid and to handle requests for legal aid with diligence (Tabor v. Poland, 2006, §§ 45-46; Saoud v. France, 2007, §§ 133-36). The Dragan Kovačević v. Croatia judgment, 2022, dealt with the question of legal aid in proceedings before a Constitutional Court and the vulnerability of an applicant who had been deprived of legal capacity (§§ 35-36, 79 and 81).
Furthermore, the refusal of legal aid to foreign legal persons is not contrary to Article 6 (Granos Organicos Nacionales S.A. v. Germany, 2012, §§ 48-53). Regarding commercial companies in general, see Nalbant and Others v. Turkey, 2022 (§§ 37-38).
Effectiveness of the Legal Aid
The State is not accountable for the actions of an officially appointed lawyer. It follows from the independence of the legal profession from the State (Staroszczyk v. Poland, 2007, § 133), that the conduct of the defence is essentially a matter between the defendant and his counsel, whether counsel is appointed under a legal aid scheme or is privately financed. The conduct of the defence as such cannot, other than in special circumstances, incur the State’s liability under the Convention (Tuziński v. Poland (dec.), 1999).
However, assigning a lawyer to represent a party does not in itself guarantee effective assistance (Siaƚkowska v. Poland, 2007, §§ 110 and 116). The lawyer appointed for legal aid purposes may be prevented for a protracted period from acting or may shirk his duties. If they are notified of the situation, the competent national authorities must replace him; should they fail to do so, the litigant would be deprived of effective assistance in practice despite the provision of free legal aid (Bertuzzi v. France, 2003, § 30).
It is above all the responsibility of the State to ensure the requisite balance between the effective enjoyment of access to justice on the one hand and the independence of the legal profession on the other. The Court has clearly stressed that any refusal by a legal aid lawyer to act must meet certain quality requirements. Those requirements will not be met where the shortcomings in the legal aid system deprive individuals of the “practical and effective” access to a court to which they are entitled (Staroszczyk v. Poland, 2007, § 135; Siaƚkowska v. Poland, 2007, § 114 – violation).
To sum up, the State cannot be held responsible for every action/inaction or shortcoming on the part of a legal aid lawyer, and the litigant also has certain responsibilities in this area (Bąkowska v. Poland, 2010, §§ 45-54, and, mutatis mutandis, Feilazoo v. Malta, 2021, §§ 125-126 and 131).